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[2016] ZAGPPHC 47
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Maake v Allied Capital (Pty) Ltd and Another (100540/2015) [2016] ZAGPPHC 47 (5 February 2016)
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REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)
CASE
NO: 100540/2015
5/2/2016
NTHABISENG
MAAKE
APPLICANT
and
ALLIED
CAPITAL (PlY)
LTD
1
st
DEFENDANT
NATIONAL
CONSUMER
REGULATOR
2
nd
DEFENDANT
JUDGMENT
KHUMALO
J
INTRODUCTION
[1]
In this Application the Plaintiff seeks the immediate return of her
motor vehicle described a 2014 Citrine Mercedes Benz C200
bearing
registration number: […] ('the vehicle") that the 1
st
Respondent removed from her allegedly unlawfully, without her
consent, (a mandamus action) on 8 December 2015.
[2]
The Plaintiff being the registered owner was at all relevant times in
possession of the vehicle until it was removed from her
by the 1
st
Respondent.
[3]
The 1
st
Respondent carries business as a credit provider
from its offices in Centurion, Pretoria.
[4]
The 2
nd
Respondent the National Consumer Regulator is
cited as the statutory body that is charged with regulatory functions
of Credit providers
with no specific relief sought against it. I will
refer to the 1
st
Respondent as "the Respondent".
FACTUAL
BACKGROUND
[5]
It is common cause that on 9 March 2015 the Respondent had extended
credit to the Applicant in an amount of R30 000. That is
what links
it with the Applicant. There is a dispute whether or not the debt was
settled. Applicant alleges that it was settled
whilst the 1
st
Respondent argues that it is still outstanding.
[6]
Following that dispute, in December 2015 the Applicant was accosted
by men from the Respondent's company and dispossessed of
her motor
vehicle whilst it was parked at the Sandton City Mall. She was with
her two children aged 16 and 11.
[7]
According to the Applicant on 8 December 2015, 4 hugely built men who
looked like bouncers ambushed and forcefully dispossessed
her of the
vehicle notwithstanding her protesting at the time. As that was
happening she received a phone call from one Antoinette,
an employee
of the Respondent informing her that the vehicle must be seized for
she signed away her right of ownership to the Respondent,
which she
vehemently denies. She alleges she was intimidated and felt
humiliated by the 1
st
Respondent's conduct as a result
suffered from a severe stress and depression. She therefore consulted
her doctor and was admitted
to hospital until 11 December 2015,
returning to work on 13 December 2015. She was only able to refer the
matter to her attorney
on 18 December 2015 upon which a demand for
the return of the vehicle was made telephonically and a letter sent
to the 1
st
Respondent on the same day. Since her attorneys
were going away, she personally went to the 1
st
Respondent's offices the next day on 19 and on 21 December 2015 to
follow up on the demand, followed by e-mails she sent on the
same
days, but could not get the vehicle back. On the succeeding days she
made several calls asking to speak to a Mr Lourens or
the managing
director without success. 1
st
Respondent could also not
commit that the sale of her motor vehicle was not imminent therefore
she approached the court on an urgent
basis on 29 December 2015
seeking the immediate return of her motor vehicle. She alleges to
have been in peaceful and undisturbed
possession when the vehicle was
seized from her by intimidation and force.
[8]
According to the 1
st
Respondent William John Knox ("Knox")
and another man from the Rrespondent approached the Applicant on 2
December 2015
at the Sandton City Mall. Applicant voluntarily handed
over the keys and the parking ticket to them. They told her she can
fetch
her belongings that were in the car from their offices in
Pretoria and drove off · with the vehicle. They deny that she
was dispossessed of the vehicle without her consent and allege that
their conduct was in keeping with a prior arrangement agreed
upon by
the parties sometime towards the end of November 2015, whereupon they
arranged that, the Applicant:
[8.1] will surrender the
vehicle;
[8.2] enter into a
payment proposal to settle the arrear rentals; after which
[8.3] she would be given
the vehicle back on condition she settles the arrears.
[9]
Respondent alleges further that, following that arrangement Applicant
contacted their office on 30 November 2015 to arrange
for the return
of the vehicle and to schedule a meeting to negotiate a payment
proposal. However the Applicant failed to comply
with her
undertakings as agreed in the prior arrangement. On 2 December 2015,
they traced the motor vehicle to be parked at Sandton
City Mall in a
parking. Knox, the deponent to 1
st
Respondent's answering
affidavit and the other man received instructions from the Respondent
office to collect the motor vehicle
from the Applicant. The Applicant
had left it in the parking lot whilst doing her errands. They waited
for her next to the vehicle
and on her arrival she freely and
voluntarily surrendered the vehicle to them. She also arranged to
fetch her belongings that were
in the car from the Respondent's
office in Pretoria. On 4 December 2015 they received a proposal from
her via an e-mail to settle
the arrears in three payments, on 7, 11
and 15 December 2015. She only sent a demand for the return of the
vehicle on 18
th
December 2015 when she failed to comply
with the proposal, followed by her launch of the urgent Application
on 29 December2015
for the urgent spoliation application.
[10]
The main question that arises from these facts is whether or not the
spoliation remedy, given the facts as alleged by the parties
was
available to the Applicant? Further allegations made by the parties
against each other were speculative, except for the fact
that
Applicant also referred to her being a registered owner of the
vehicle and having settled the debt that 1st Respondent wanted
to
enforce by attaching her vehicle. The whole matter rested on a
balance of probabilities. The onus being upon the Applicant to
prove
that she has made a proper case for the relief sought.
LEGAL
FRAMEWORK
[11]
The fundamental principle of our law is that a person should not be
disturbed in their possession of property without proper
recourse to
legal process. That is what informs the remedy of a
mandament van
spolie.
Applicant is therefore required to satisfy the court on
the admitted or undisputed facts that on a balance of probabilities
the
motor vehicle that she alleges to have been spoliated by the 1
st
Respondent was in her possession and that her possession was
disturbed by the vehicle's forceful or wrongful removal or that was
done against her consent; see
Yeko v Qana
1973 (4) SA 735
(A)
at 739E,
Nienaber v Stuckey
1946 AD 1049
at 1053. The
mandament van spolie
is therefore a remedy where the
possession of a party is protected thus the right to ownership does
not play any part in determining
such deprivation. Also although it
does not resolve the ultimate rights of the parties, it is a final
determination of the immediate
right of possession. Hence the right
of possession is the first element that the Applicant has got to
establish; see
Yeko.
[12]
As a result
mandament
is a speedy remedy and the restoration
of possession should therefore happen at once. Speedy refers to
restoration of possession
not in relation to the period within which
the application is brought. Therefore this does not mean that because
the application
is one for a spoliation order, the matter
automatically becomes one of urgency; see
Mangala v Mngala
1967
(2) SA 415
(E) at 416. Restoration takes place immediately but the
action taken for restoration must be within a reasonable time.
According
to Erasmus' Superior Court Practice 2
nd
Edition
by Loggerenberg, 'if the Applicant delayed for more than a ye.ar
before bringing the Application there would have to be
special
circumstances present to allow him to proceed. Conversely, if the
application was brought within a year of the act of spoliation,
special circumstances will have to be present for the relief to be
refused, merely on the basis of excessive delay. In some cases
it
might be necessary to determine if the delay was inordinate so as to
constitute acquiescence.
Analysis
of the facts
The
establishment of the right of possession
[13]
The Applicant has indicated that she was in undisturbed possession of
the vehicle as the owner, a fact that has not been disputed
by the
1
st
Respondent. Consequently there was no issue about the
possession its peacefulness or disturbance prior to this incident.
Also the
fact that she was dispossessed is not in issue. However
whether or not Applicant was disturbed or dispossessed wrongfully or
forcibly
against her consent is what is in issue and the Applicant
has to prove. The facts that illustrate how the dispossession took
place
are of paramount importance and somehow parties present
slightly different versions. Which prompted the Respondent's counsel
to
allege that there is a dispute of fact that requires the matter to
be sent to trial.
[14]
How the court is supposed to deal with different versions or facts as
this is an Application are well expounded in the most
cited case as
far back as 1949 of
Room Hire Co
(
Pty) Ltd v Jeppe Street
Mansions (Pty) Ltd
1949 (3) SA 1155
(T), when the courts held
that the crucial question is whether there is a real dispute of fact.
In
Wightman t/a J W Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) the Supreme Court of Appeal
(SCA) held at par 13 that: 'A rear genuine and
bonafide
dispute
of fact can exist only where the court is satisfied that the party
who purports to raise the dispute has in his affidavit
seriously and
unambiguously addressed the fact to be disputed.' Also the court will
regard a dispute of fact to exist on the basis
of what is alleged in
the answering affidavit in comparison to the founding affidavit. The
Supreme Court of Appeal in
Buffalo Freight Systems {Pty) Ltd v
Crestleigh Trading (Pty) Ltd and another
2011 (1) SA 8
(SCA),
considered the apparent dispute of fact and the evidence put up by
both of the parties. The court found that it was "inherently
improbable to a high degree" that Buffalo Freight Systems would
have agreed to the terms of payment alleged by Crestleigh
Trading.
The court also took into account that the contradictory versions put
up in the three affidavits filed on behalf of Crestleigh
Trading.
[15]
Applicant alleges that the removal was forceful and without her
consent in that she was intimidated to surrender the car by
being
approached by 4 hugely built men whilst shopping, without warning in
a parking in the mall. She was not even allowed to take
out her
things that were in the motor vehicle. They left with her things;
leaving her and the children in the parking mall with
a message to
collect her things from Pretoria. Applicant says she was intimidated
by the men she found waiting for her and shocked
since it also
happened [the Applicant acquiesced to their demand to hand over the
car and even gave them the parking ticket so
that they can get out of
the parking lot in line with the prior arrangement that she will
surrender the car and negotiate a settlement
of the debt. However it
is also the 1
st
Respondent's allegation that the Applicant
did not comply with the arrangement. That on her failure to surrender
the car or to
comply with the arrangement they traced the whereabouts
of the motor vehicle and sent the two men to repossess the vehicle
forthwith
without warning the Applicant. That illustrates absence of
consent or an agreement whether subsequent to the failure of the
arrangement
or before. The chance of her willingly acquiescing to the
dispossession of the vehicle with her things inside with her children
in a parking lot is far- fetched and inherently improbable.
[16]
An argument also ensued relating to an email that was alleged to have
been sent by the Applicant on 4 December 2015, making
an offer to
settle the debt in three instalments which according to the
Respondent was sent after the recovery of the vehicle whilst
Applicant's version is that she might have sent it before the vehicle
was repossessed. The Respondent alleges that the Applicant
only wrote
the letter of the 18
th
December 2015 demanding the return
of the vehicle after she failed to comply with the undertakings in
her e-mail. This, argues
the Respondent, proves that she acquiesced
to the dispossession of the motor vehicle but changed her mind as
soon as she realised
she could not comply with the offer. The
Respondent attributes Applicant's inaction during the time she
alleges to have been in
hospital to have been an
acquiescence/acceptance as well of the dispossession and allege she
failed to attach any proof. It is
the respondent who says that after
she failed to comply with the arrangement she made, which in terms of
the e-mail to make a first
payment by 7 December, they traced the car
and went to collect it. The dispossession could therefore highly
unlikely to have happened
on 2 December but on 8 December 2015 as
alleged by the Applicant.
[17]
The fact that she made an offer does not make the Respondent's
deprivation of her motor vehicle without recourse to the law
not
wrongful or mean that she acquiesced to the wrongful dispossession by
the 1
st
Respondent. Conversely, resorting to self- help
instead of the law, tracing and sending the men to go and dispossess
the vehicle
allegedly because of the failure by Applicant to
negotiate payment or surrender the car is the sort of conduct that
the remedy
of
mandament
intends to discourage and avoid.
[18]
Now since the Applicant in its papers also alluded to a transaction
that happened between the two, the Respondent sought to
prove that in
terms of an agreement or an arrangement between the parties it was
legally justified to dispossess the Applicant,
since she agreed to
surrender the motor vehicle. According to Innes CJ in
Nino Bonino
v De Lange
1906 TS 120
, 'a term in a contract which authorises a
party thereto, in given circumstances, to take possession without
recourse to the courts,
of property in possession of the other, is
void.' He emphasised that by holding that
"the court cannot
recognise such a provision. It is an agreement which purports to
allow one of the contracting parties to
take the law into his own
hands, to do that which the law says only the court shall do, that
is, to dispossess one person and to
put another person in possession
of the property."
[19]
In this matter it also became important that the Applicant approach
the court by way of urgency even though the spoliation
action is not
a matter of urgency. The court did find the matter to be urgent as
the Applicant showed that there was a threat of
the motor vehicle
being sold as the Respondent could not give the undertaking that was
sought by the Applicant. This could only
have been done because the
Applicant was not willing to surrender the motor vehicle and instead
of resorting to the law the Respondent
resorted to self-help.
[21]
Under the circumstances, I therefore make the following order:
[21.1] The Respondent is
directed to immediately return the motor vehicle described as a 2014
Citrine Brown Mercedes Benz C200 bearing
Registration Number […]
to the Applicant;
[21.2] That should the
Respondent fail to comply with the above order within (one) day of
the granting of this order, then the sheriff
of the Court be
authorized to take the said motor vehicle from the Respondent or from
whoever that it may be and wherever it may
be found and forthwith
return it to the Applicant.
[21.3] The Respondent is
to pay the costs.
___________________________
N
V KHUMALO
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION: PRETORIA
For
the Plaintiff: Adv
Snyman
Instructed
by: Mthembu
Sibiya Attorneys
Ref:
V S/LP/488/12/2015
For
the First Respondent: Adv J C VIUOEN
Instructed
by: Mario
Coetzee Attorneys
Stupel
and Berman Inc
Ref:
Mr Berman
I
EPotgieter